On appeal, defendant renews his
argument that he did not "induce" S to engage in prostitution for the
purposes of ORS 167.017(1)(b).� He argues that ORS 167.017(1)(b) applies only
to third-party promoters of prostitution, not patrons of prostitutes.�
According to defendant, a patron does not "induce" a person to engage
in prostitution by creating the opportunity for, and paying for, sexual conduct.�

Defendant's argument raises a
question of statutory interpretation; we must determine what the legislature
intended when it provided in ORS 167.017(1)(b) that a person commits the crime
of compelling prostitution if the person "induces" a minor to engage
in prostitution.� To do so, we begin by examining the text and context of the
statute, as well as any relevant legislative history provided by the parties.� State
v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).�

"[ORS 161.017, defining compelling prostitution] particularizes
three forms of promoting prostitution considered aggravating factors serving to
increase the seriousness of the offense.� It covers coercive conduct
characterized by force or duress, conduct that exploits the immature and that
which victimizes a dependent person."

The drafters of the criminal code
specifically addressed the question of whether promoting prostitution and
compelling prostitution apply to patrons or only to third-party promoters.� ORS
167.012(1)(b) provides that a person commits the crime of promoting
prostitution if the person "[i]nduces or causes a person to engage in
prostitution[,]" and the drafters explained that the statute "is not
intended, particularly in regard to paragraph[](b)[,] * * * to reach the patron
of a prostitute * * *."� Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report, � 251, 241 (July 1971) (emphasis
in original). �Correspondingly, and as set forth above, ORS 167.017(1)(b),
provides that a person commits the crime of compelling prostitution if the
person "[i]nduces or causes a person under 18 years of age to engage in
prostitution[,]" and the drafters explained that, "[t]he term
'induces or causes' used in paragraphs (b) and (c), is not intended to cover a
patron who pays a fee to a prostitute in return for sexual favors."�
Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code,
Final Draft and Report, � 251, 242 (July 1971).� It "is not intended to
apply to the patron of a prostitute, but is directed at the third party
promoter."� Id.� Thus, the context and legislative history
establish that promoting prostitution and compelling prostitution (as an
aggravated form of promoting prostitution) are intended to apply to those
engaged in prostitution "carried on as a commercial enterprise," that
is, "panderers," "pimps," and "madams."� They
apply to third-party promoters, not patrons.� Patrons are subject to
prosecution for prostitution, under ORS 167.007.

The state does not address the
legislative history of the prostitution statutes.� Instead, it relies on two of
our cases--Wood, 34 Or App at 569, and State v. Williams, 40 Or
App 227, 594 P2d 1281 (1979)--which, it argues, stand for the proposition that
"it is not necessary that a defendant exhibit force or act as a third-party
promoter to violate ORS 167.017(1)(b). * * * Rather, a defendant violates the
statute by prevailing upon a person under the age of 18 to engage in
prostitution."�

Wood and Williams do
not support the state's claim that ORS 167.017(1)(b) applies to patrons.� Both
cases involved third-party promoters.� The defendant in Wood brought a
minor to Oregon, arranged for the minor and another woman to prostitute
themselves, and collected prostitution earnings from them.� The defendant in Williams
encouraged two minors to engage in prostitution, allowed them to use his
apartment for prostitution, and collected prostitution earnings from them.�
Thus, in deciding those cases we were not called upon to decide, and did not
decide, whether ORS 167.017(1)(b) applies to patrons.�

Wood and Williams concerned
the type and amount of encouragement a third-party promoter has to exert to be
guilty of compelling prostitution under ORS 167.017(1)(b) by inducing or
causing a minor to engage in prostitution.� We held that a third-party promoter
need not use force to violate ORS 167.017(1)(b).� Specifically, we held that a
third-party promoter who "provides opportunity for a willing minor to
engage in prostitution and influences, persuades or prevails upon her to do so
has induced or caused the prostitution" within the meaning of ORS
167.017(1)(b).� Wood, 34 Or App at 573; Williams, 40 Or App at
231-32 (quoting Wood).� But, we did not hold, as the state claims, that
ORS 161.017(1)(b) applies to patrons.� Doing so would have been contrary to the
legislative intent underlying the prostitution statutes, as discussed above.�

Based on its reading of Wood
and Williams, the state argues that defendant induced S to engage in
prostitution by providing her with rides, cigarettes, and alcohol.� Defendant's
actions may have been designed to induce S to engage in prostitution with him,
but there is no evidence that they were designed to induce S to engage in
prostitution with others.� In other words, there is no evidence that defendant
acted as a third-party promoter, and that is what is required for compelling
prostitution.�

1.The
first-degree rape charge was based on defendant's first sexual encounter with
S.� The court found defendant not guilty of the charge because it found that
defendant had not forcibly compelled S to have sexual intercourse; the court
found defendant guilty of second-degree sexual abuse as a lesser included
offense for having sexual intercourse with her, without her consent,
because--as a minor--she was legally incapable of giving consent.� The two
third-degree rape charges were based on defendant's second and third sexual
encounters with S.� They alleged that defendant had sexual intercourse with a minor,
i.e., "statutory rape."

"(1) A person commits the crime of
promoting prostitution if, with intent to promote prostitution, the person
knowingly:

"(a) Owns, controls, manages, supervises or
otherwise maintains a place of prostitution or a prostitution enterprise; or

"(b) Induces or causes a person to engage
in prostitution or to remain in a place of prostitution; or

"(c) Receives or agrees to receive money or
other property, other than as a prostitute being compensated for personally
rendered prostitution services, pursuant to an agreement or understanding that
the money or other property is derived from a prostitution activity; or

"(d) Engages in any conduct that
institutes, aids or facilitates an act or enterprise of prostitution."�